The $16.7 million x-ray: Possible beats probable in court

In a recent verdict a jury in Massachusetts awarded $16.7 million in damages to the daughter of a Bostonian lady who died from lung cancer at 47, for a missed cancer on a chest x-ray.

The verdict reminds one of the words of John Bradford, the heretic, who was burnt at the stakes. “There but for the grace of God go I.”

Many radiologists will sympathize with both the patient who died prematurely, and the radiologist who missed a 15mm nodule on her chest x-ray when she presented with cough to the emergency department few months earlier.

The damages are instructive of the degree of tension between Affordable Care Act’s push for both resource stewardship and patient-centeredness. But the verdict mostly speaks of the ineffectualness of evidence-based medicine (EBM) in court.

EBM tells us that had the patient’s cancer been detected thirteen months before it actually was, it would have made little difference to her survival. Statistically speaking, that is.

Researchers from Mayo Clinic examining the impact of frequent chest x-rays in screening for lung cancer in a large number of smokers found that the intensively screened group knew about their cancers earlier, had more cancers removed, but did not live longer as a result.

This is known as lead time bias, where early detection means more time knowing that one has the cancer, not more time one is actually alive.

Meaning that had the nodule been seen on the patient’s initial chest x-ray she would probably, not certainly, not have survived much beyond 47.

Lead time bias is a basic concept in epidemiology and biostatistics. Physicians have it drilled in to them. Recognition of this artifact curbs therapeutic and screening optimism.

Why does lead time bias not cross the courtroom door?

Plaintiff’s lawyer need entertain only a possibility that early detection could have cured the cancer to prevail in a suit. Though cure in this case was statistically improbable it was certainly not impossible. Statistics predict, they don’t prophesize.

Evidence-based medicine speaks of the probable. Plural of possibility is not evidence. But possibility beats probability in court. Or, as a defense attorney for medical malpractice confided, “The last thing I want is to call the plaintiff a statistic. That’s a guaranteed turn off for the jury.”

Physicians are increasingly asked to be mindful of the population, not just the individual patient. The explicit message from policy makers is that we must be sensitive of limited resources. We are chastised for overutilization of imaging. Yet it’s hard to see how excess utilization can be curbed unless courts respect evidence-based medicine.

It’s times like this that meaningful tort reform appears painfully conspicuous by its absence from the Affordable Care Act.

One might counter that had the radiologist picked up the lung nodule the lawsuit would never have occurred. That a miss is a miss, regardless of the outcome.

Alas, that, too, is not so simple. Perceptual errors are common in interpreting chest x-rays. Researchers have found that a large number of cancers can be seen, in hindsight, on chest x-rays. So much so, that an appeals court once proffered that a perceptual error is not necessarily negligence.

This case reminds me of the wisdom of one of my professors during residency.  A leading radiologist of his time, he cautioned that “the first ten thousand chest x-rays are easy.”

Puzzled then, but having now interpreted well over ten thousand chest x-rays, I understand what he meant. I am more aware than before of what I might miss. This has created an odd combination of expertise and insecurity.

When the insecurity gets the better of me I imagine shadows on x-rays, and recommend CT scans to “rule out a mass.” Sometimes I catch a cancer. But more often than not I raise false alarms, inconveniencing the patient and wasting resources.

Option traders can avoid trades that are low on the upside and high on the downside. Radiologists do not have that luxury. Paid barely $10 for a chest x-ray, but with a multi-million dollar bounty for missing cancer and a Russian roulette for perceptual errors, radiologists will simply recommend more CAT scans rather than take the risk in declaring that the X-ray is “normal.”

The net cost of this verdict to society will likely be in excess of $16.7 million.

Saurabh Jha is a radiologist and can be reached on Twitter @RogueRad

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  • SteveCaley

    In our bureaucratic society, we allow the overriding moral definition to control us, that the Rules are perfect, so failure only occurs as a result of individual deviations from the Rules, caused by reprehensible human error.
    Only humans fail – the Machine is perfect. Therefore, problems in systems that lead to error are never addressed, because the underlying premise that the Rules may be defective, is seditious.
    The Rule has been made – no cancers shall be missed on plain-film investigation. There is no rational parameter setting – such as we wish to rule out cancers with 99.9% selectivity on a sample set with a 0.01% chance of cancer, which is how rational planning can be done – instead, we make the Rule and punish the human defectives.
    As Dr. Jha said, the more unyielding the Rule is, the more elaborate the workup. Perhaps, for instance, this x-ray was requested under the title “cough,” as so many thousands of x-rays are. I have found that the more carefully and precisely I ask my consultant a question, the better the result is. If I ask “52 y/o Haitian male smoker with hemoptysis,” the radiologist’s brain can tell the eyes how to look. I had a <30 y/o male foreign national nonsmoker present with cough – and the answer was, regrettably, Stage IV adenocarcinoma. Such diseases can happen, no matter what the rules tell us. But the more we avoid criticizing the rules but whipping the providers, the more the cost of healthcare will explode.

  • ninguem

    And this is what is meant by “defensive medicine”, that the personal injury bar likes to claim does not exist.

  • JR DNR

    Emergency room Xray looking for pneumonia – patient doesn’t have pneumonia – Xray was read correctly per the referring doctor’s inquiry. An emergency room physician’s main purpose is to make sure the the patient is stable and not dying. I don’t see any liability based on that.

    I understand that only because I a a patient who has read a lot of patient advocacy and sites like this to learn how doctors perceive things. I used to think of the ER as being this place where they dug to get to the bottom of a diagnosis, I mean, that’s what they do on tv. I haven’t watched those shows recently, but I never remember patients getting refereed back to their physicians for follow up care.

    This patient didn’t get followup care for 13 months. I’m not going to blame anyone for that, but I think that is a serious problem in this case. Unfortunately, for many people (including myself in the past) if the treatment doesn’t work they just stop the treatment rather than getting a second opinion or going back for followup. I’m not saying they could have saved her, but perhaps she could have been made more comfortable.

    The thing is, most judgments aren’t done on Evidence Based Medicine but on “Standard of Care” – even if the standard of care is proven with evidence to be ineffective. I think that this is a clear problem, but I usually hear arguments from medical personnel that they support standard of care.

    That all being said, it’s really impossible to understand this kind of judgement without having the full story which will never be received from a news article. Were there testimonies from an expert claiming that they should have caught the cancer at that visit AND that it would be treatable if caught that early? I can imagine a jury being easily swayed by such a decision.

  • QQQ

    “It’s times like this that meaningful tort reform appears painfully conspicuous by its absence from the Affordable Care Act”
    This is why many of us did not want big daddy government deciding what is allowed to go in a health insurance plan. The government is inefficient, lacks people with management skills , and is always political in every single decision.People are now realizing the thousands of tiny changes that can affect pricing, and insurability that the insurance companies all did for free.Now of course the government has to spend a trillion dollars to try to do the same thing , but they are failing miserably.

  • Shirie Leng, MD

    Absolutely true. CYA is alive and well because of verdicts like this. We’ll never decrease health care costs when this sort of thing keeps happening.

  • Vikram

    There should be the proper facilities for diagnosis as you told that a lady died because of cancer and it is not even detected also so there should be proper development in this field

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